Citation Nr: 0611244
Decision Date: 04/19/06 Archive Date: 04/26/06
DOCKET NO. 03-06 944 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an increased rating for disability of the
thoracic spine, evaluated as 20 percent disabling prior to
November 7, 2005, and as 40 percent disabling from November
7, 2005.
REPRESENTATION
Appellant represented by: Catholic War Veterans of the
U.S.A.
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1944 to
October 1946. This case comes before the Board of Veterans'
Appeals (Board) on appeal from a September 2002 rating
decision of the Winston-Salem, North Carolina, Regional
Office (RO) of the Department of Veterans Affairs (VA).
The veteran's appeal was previously before the Board in March
2005, at which time the Board remanded the case for further
action by the originating agency. The requested development
has been completed, and the case has been returned to the
Board for further appellate action.
While this case was in remand status, the originating agency
assigned an increased rating of 40 percent for the veteran's
back disability, effective from November 7, 2005. This did
not satisfy the veteran's appeal.
The Board notes that at the most recent VA examination, the
examiner concluded that the weakness and peripheral
neuropathy in the veteran's lower extremities had been
aggravated by his service-connected back disability.
Therefore, these matters are referred to the originating
agency for proper action.
FINDINGS OF FACT
1. Prior to November 7, 2005, the veteran's service-
connected back disability was manifested by severe limitation
of motion of the dorsal spine and a demonstrable deformity of
the vertebral body; the veteran did not experience
incapacitating episodes requiring bedrest prescribed by a
physician.
2. For the period beginning November 7, 2005, the veteran's
service-connected back disability has been manifested by
severe limitation of motion; the veteran's spine is not
ankylosed and the disability is not productive of
incapacitating episodes of at least six weeks for any year
pertinent to this claim.
CONCLUSIONS OF LAW
1. For the period prior to November 7, 2005, the criteria
for an evaluation higher than 20 percent for the veteran's
service-connected back disability have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic
Codes 5285, 5288, 5291, 5293 (2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (2003); 38 C.F.R. §§ 4.1, 4.7, 4.10,
4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5235-5243
(2005).
2. For the period beginning November 7, 2005, the criteria
for an evaluation higher than 40 percent for the veteran's
service-connected back disability have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10,
4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5235-
5243 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2005), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
The Board also notes that the Court has held that the plain
language of 38 U.S.C.A. § 5103(a) (West 2002), requires that
notice to a claimant pursuant to the VCAA be provided "at the
time" that, or "immediately after," VA receives a complete
or substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")."
The record reflects that the originating agency provided the
appellant with the notice required under the VCAA by letters
mailed in June 2002 and April 2005, to include notice that he
submit any pertinent evidence in his possession.
The record also reflects that the veteran has been afforded
an appropriate VA examination and that the originating
agency has obtained the veteran's service medical records and
post-service treatment records. Neither the veteran nor his
representative has identified any other outstanding evidence
that could be obtained to substantiate the claim. The Board
is also unaware of any such available evidence. Therefore,
the Board is also satisfied that VA has complied with the
duty to assist requirements of the VCAA and the pertinent
implementing regulation.
Following the provision of the required notice and the
completion of all indicated development of the record, the
originating agency readjudicated the veteran's claim. There
is no indication in the record or reason to believe that the
ultimate decision of the originating agency would have been
different had complete VCAA notice been provided at an
earlier time.
In sum, the Board is satisfied that any procedural errors in
the development and consideration of the claim by the
originating agency were insignificant and non-prejudicial to
the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Accordingly, the Board will address the merits of the claim.
Legal Criteria
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects her ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations. 38
U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2005).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The evaluation of the same disability under various diagnoses
is to be avoided. 38 C.F.R. § 4.14 (2005).
38 C.F.R. § 4.14 does not preclude the assignment of separate
evaluations for separate and distinct symptomatology where
none of the symptomatology justifying an evaluation under one
diagnostic code is duplicative of or overlapping with the
symptomatology justifying an evaluation under another
diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262
(1994).
Traumatic arthritis is rated as degenerative arthritis.
38 C.F.R. § 4.71a, Diagnostic Code 5010 (2005).
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic code(s) for the specific joint(s)
involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2005).
During the pendency of this claim, the criteria for
evaluating disabilities of the spine were revised.
Under the criteria in effect prior to September 23, 2002,
intervertebral disc syndrome warrants a noncompensable
evaluation if it is postoperative, cured. A 10 percent
evaluation is warranted if it is mild. A 20 percent
evaluation is warranted if it is moderate with recurring
attacks. A 40 percent evaluation is authorized for
intervertebral disc syndrome if it is severe with recurrent
attacks and intermittent relief. A 60 percent evaluation is
warranted for pronounced intervertebral disc syndrome with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).
Under the interim revised criteria of Diagnostic Code 5293,
effective September 23, 2002, intervertebral disc syndrome is
evaluated (preoperatively or postoperatively) either on the
total duration of incapacitating episodes over the past 12
months, or by combining under 38 C.F.R. § 4.26 (combined
rating tables) separate evaluations of its chronic orthopedic
and neurologic manifestations along with evaluations for all
other disabilities, which ever method results in the higher
evaluation. A maximum 60 percent evaluation is warranted
when rating based on incapacitating episodes, and such is
assigned when there are incapacitating episodes having a
total duration of at least six weeks during the past 12
months. A 40 percent evaluation is assigned for
incapacitating episodes having a total duration of at least 4
weeks, but less than 6 weeks, during the past 12 months. A
20 percent evaluation is assigned for incapacitating episodes
having a total duration of at least 2 weeks, but less than 4
weeks, during the past 12 months, and a 10 percent evaluation
is assigned with the incapacitating episodes having a total
duration of at least 1 week, but less than 2 weeks, during
the past 12 months.
Note 1 provides that for the purposes of evaluations under
Diagnostic Code 5293, an incapacitating episode is a period
of acute signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a physician and
treatment by a physician. "Chronic orthopedic and
neurological manifestations" means orthopedic and neurologic
signs and symptoms resulting from intervertebral disc
syndrome that are present constantly, or nearly so. Note 2
provides that when evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities using
evaluation criteria for the most appropriate orthopedic
diagnostic code or codes. Evaluate neurological disabilities
separately using evaluation criteria for the most appropriate
neurological diagnostic code or codes. 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (2003).
Under the criteria in effect prior to September 26, 2003,
residuals of a fractured vertebra, without cord involvement,
and with an abnormal mobility requiring a neck brace warrants
a 60 percent rating. For instances of demonstrable deformity
of a vertebral body, an additional 10 percent rating is
warranted. Residuals of a fractured vertebra with cord
involvement, requiring long leg braces, or being bedridden,
warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic
Code 5285 (2003).
Under the criteria in effect prior to September 26, 2003,
limitation of motion of the dorsal spine warrants a
noncompensable evaluation if it is slight, a 10 percent
evaluation if it is moderate, and a 10 percent evaluation if
it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5291
(2003).
In determining the degree of limitation of motion, the
provisions of 38 C.F.R. §§4.10, 4.40 and 4.45 (2005) are for
consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The basis of disability evaluation is the ability of the body
as a whole, or of the psyche, or of a system or organ of the
body to function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence or
deformity of structures or other pathology, or it may be due
to pain, supported by adequate pathology and evidenced by the
visible behavior in undertaking the motion. Weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40.
With respect to joints, in particular, the factors of
disability reside in reductions of normal excursion of
movements in different planes. Inquiry will be directed to
more of less than normal movement, weakened movement, excess
fatigability, incoordination, pain on movement, swelling,
deformity or atrophy of disuse. 38 C.F.R. § 4.45.
The intent of the Rating Schedule is to recognize actually
painful, unstable or malaligned joints, due to healed injury,
as entitled to at least the minimum compensable rating for
the joint. 38 C.F.R. § 4.59.
Ankylosis of the dorsal spine warrants a 20 percent
evaluation if it is favorable or a 30 percent evaluation if
it is unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5288
(2003).
Under the criteria effective September 26, 2003, disabilities
of the spine are to be evaluated under the general rating
formula for rating diseases and injuries of the spine
(outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5237-
5242 (2005). Intervertebral disc syndrome will be evaluated
under the general formula for rating diseases and injuries of
the spine or under the formula for rating intervertebral disc
syndrome based on incapacitating episodes (outlined above),
whichever method results in the higher evaluation when all
disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R.
§ 4.71a, Diagnostic Code 5243 (2004).
Under the general rating formula for rating diseases and
injuries of the spine, effective September 26, 2003, with or
without symptoms such as pain, stiffness or aching in the
area of the spine affected by residuals of injury or disease,
the following ratings will apply. A 20 percent evaluation is
warranted for forward flexion of the thoracolumbar spine
greater than 30 degrees, but not greater than 60 degrees; the
combined range of motion of the thoracolumbar spine is not
greater than 120 degrees; or if there is muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis,
or abnormal kyphosis. A 40 percent evaluation is warranted
if forward flexion of the thoracolumbar spine is to 30
degrees or less or if there is favorable ankylosis of the
entire thoracolumbar spine. A 50 percent evaluation is
warranted for unfavorable ankylosis of the entire
thoracolumbar spine and a 100 percent evaluation is warranted
for unfavorable ankylosis of the entire spine.
There are several notes set out after the diagnostic
criteria, which provide the following: First, associated
objective neurologic abnormalities are to be rated separately
under an appropriate diagnostic code. Second, for purposes
of VA compensation, normal forward flexion of the
thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30
degrees, left and right lateroflexion is 0 to 30 degrees, and
left and right lateral rotation is 0 to 30 degrees. The
combined range of motion refers to the sum of the range of
forward flexion, extension, left and right lateroflexion, and
left and right rotation. The normal combined range of motion
of the thoracolumbar spine is to 140 degrees. Third, in
exceptional cases, an examiner may state that, because of
age, body habitus, neurologic disease, or other factors not
the result of disease or injury of the spine, the range of
motion of the spine in a particular individual should be
considered normal for that individual, even though it does
not conform to the normal range of motion stated in the
regulation. Fourth, each range of motion should be rounded
to the nearest 5 degrees.
The term "incomplete paralysis" with peripheral nerve
injuries indicates a degree of loss or impaired function
substantially less than the type pictured for complete
paralysis given with each nerve, whether due to the varied
level of the nerve lesion or to partial regeneration. When
the involvement is wholly sensory, the rating should be for
mild, or at most, the moderate degree. See note at "Diseases
of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).
Complete paralysis of the sciatic nerve warrants an 80
percent evaluation; with complete paralysis of the sciatic
nerve, the foot dangles and drops, no active movement of the
muscles below the knee is possible, and flexion of the knee
is weakened or (very rarely) lost. Incomplete paralysis of
the sciatic nerve warrants a 60 percent evaluation if it is
severe with marked muscular dystrophy, a 40 percent
evaluation if it is moderately severe, a 20 percent
evaluation if it is moderate or a 10 percent evaluation if it
is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2005).
Any reasonable doubt regarding a degree of disability will be
resolved in favor of the veteran. 38 C.F.R. § 4.3 (2005).
The Period Prior to November 7, 2005
Service connection and a 10 percent rating for residuals of a
fractured 12th vertebrae with limitation of motion of the
dorsal spine was granted by rating decision in January 1947.
The veteran's disability rating was increased to 20 percent
in the September 2002 rating decision on appeal.
In July 2002 the veteran was provided a fee-basis VA
examination. The veteran could not walk without the aid of a
walker or cane, could not bend over, and could not stand or
sit for any period of time. He reported being in constant
pain with occasional flare-ups. Straight leg raising was
negative on the right and left. Range of motion of the
thoracic and lumbar area of the spine was measured to 60
degrees of flexion, with pain beginning at 40-60 degrees.
The veteran was not capable of extending his back and had
pain on the attempt. The examiner also noted that the
veteran had pain, fatigue, a lack of endurance, and was
unable to perform repetitive bending. The veteran did not
have ankylosis of the spine. Neurological examination was
normal except for decreased vibration sense in the lower legs
and absent patellar and Achilles reflexes bilaterally. X-
rays of the veteran's back showed some disc space narrowing
of the mid-thoracic vertebra and superior wedging of the T12
vertebra of indeterminate chronicity.
Treatment records from the veteran's private physician show
that he underwent an MRI of his lumbar spine in February
2003. Mild grade I spondylolisthesis was present at L5-S1
due to degenerative facet and disc disease with no
significant spinal stenosis. The first sacral segment showed
a small disc between S1 and S2 with all other vertebral
bodies found to be normal. An old compression deformity was
noted at T12 with annular bulging at T11-12.
There is no other medical evidence pertinent to the period
prior to November 7, 2005. The foregoing evidence
demonstrates that the disability was manifested by limitation
of motion and vertebral deformity. As set forth above, 10
percent is the maximum evaluation authorized under the former
criteria for rating limitation of motion of the thoracic
spine without ankylosis. The evidence demonstrates that the
veteran's thoracic spine is not ankylosed. The veteran does
have demonstrable deformity of a vertebral body, which
justifies the addition of 10 percent, resulting in the
assigned rating of 20 percent. There is no cord involvement
or abnormal mobility requiring a neck brace so a higher
rating is not warranted under Diagnostic Code 5285. In
addition, the pertinent medical evidence does not show that
the veteran was found to have intervertebral disc syndrome so
the disability does not warrant a compensable rating under
any of the criteria for evaluating intervertebral disc
syndrome or neurological impairment.
The Board notes that under the criteria effective September
26, 2003, the veteran also does not merit a rating increase
above 20 percent. A 30 percent rating is not provided for
impairment of the thoracolumbar spine. A 40 percent rating
is authorized for forward flexion of the thoracolumbar spine
to 30 degrees or less or for favorable ankylosis of the
entire thoracolumbar spine. The medical evidence shows that
the veteran was able to forward flex the thoracolumbar spine
to 60 degrees with pain beginning at 40 degrees.
The Board has considered whether there is any other schedular
basis for granting a higher rating during the period prior to
November 7, 2005, but has found none. In addition, the Board
has considered the doctrine of reasonable doubt but has
determined that it is not applicable to this period because
the preponderance of the evidence is against the claim.
The Period Beginning November 7, 2005
In November 2005 the veteran was afforded a VA examination.
The veteran reported he could no longer walk a few steps
without the aid of a cane or walker and had had progressively
decreased sensation and profound weakness in his lower
extremities. The examiner observed that he had a crouched
posture with a forward flexion of his thoracolumbar spine of
about 30 degrees. Range of motion was limited with flexion
measured from -10 degrees to 20 degrees with the examiner
noting the veteran was unable to fully straighten into an
upright position. Extension was measured to -10 degrees,
left and right lateral flexion to 0-10 degrees, and left and
right lateral rotation to 0-10 degrees. Pain was increased
at the extremes of motion, more so during extension and
rotation. The examiner opined this meant range of motion was
more mechanically limited rather than pain limited.
Radiographs showed the veteran had a bamboo thoracic spine
with intervertebral lateral fusion noted with the most
pronounced fusion mass on the right side at T12-L1. There
were marked disc- space narrowing at T7-8 and moderate disc
space narrowing on lateral views at T11-12 and T12-L1 levels.
There were a profound anterior spur formation with bridging
noted at L4-5 and apparently minimal spondylolisthesis noted
at L5-S1 with no active motion noted on flexion/extension
films. The examiner concluded the veteran was totally
incapacitated and unable to live independently. He also
stated that the veteran's spinal disability had significantly
progressed and that his thoracolumbar spondylosis, although
probably not directly caused by his in-service injury, had
been aggravated by the resulting damage.
Under the current rating criteria, a 50 percent evaluation is
warranted for unfavorable ankylosis of the entire
thoracolumbar spine. While the veteran has limited range of
motion, the medical evidence demonstrates that his spine is
not ankylosed, and therefore, a rating in excess of 40
percent is not warranted. Diagnostic Codes 5235-5243 (2005).
In addition, the evidence continues to show that
intervertebral disc syndrome is not present and that the
disability is not productive of incapacitating episodes
necessitating bedrest prescribed by a physician. Therefore,
the disability does not warrant a rating in excess of 40
percent on the basis of intervertebral disc syndrome or a
separate compensable rating for neurological impairment.
The Board has also considered whether there is any other
schedular basis for granting a higher rating during the
period beginning November 7, 2005, but has found none. In
addition, the Board has considered the doctrine of reasonable
doubt but has determined that it is not applicable to this
period because the preponderance of the evidence is against
the claim.
Extra-schedular Consideration
Finally, the Board has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). The veteran has not required frequent
hospitalization for his back disability and the
manifestations of such are consistent with the assigned
schedular evaluations. In sum, there is no indication that
the average industrial impairment from the disability would
be in excess of that contemplated by the evaluation assigned
for the disability. Therefore, referral of this case for
extra-schedular consideration is not in order. See Floyd v.
Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet.
App. 337 (1996).
ORDER
Entitlement to an increased rating for disability of the
thoracic spine is denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs